RAQs: Recently Asked Questions

Topic: Alternative, fair use solutions for when you can't host a virtual read-aloud - 7/14/2020
For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front ...
Posted: Tuesday, July 14, 2020 Permalink

MEMBER QUESTION

For the past two years, our library hosted a 24-hour read-aloud; where people camped on the front lawn and took turns reading 6-7 books. Due to COVID, we can't hold this event in person this year. Our thought it that we could do it virtually - and instead of reading an entire book, we would ask readers to read the first chapter from one of their favorite books. They would film themselves reading (or we would film them) and then we would post the clip on our YouTube channel. One clip a day would be posted - for a total of 24 clips.

Our questions center around copyright infringement and fair use. Could we host such an event? Would this qualify under educational fair use guidelines?
Could we leave the videos up indefinitely -- or would it be better to have a specific time period and then they disappear?

Any guidance - even if it's a "don't do it!" would be helpful!

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Since the onset of pandemic restrictions, "Ask the Lawyer" has written a lot on different variations of this topic.[1]

Since I am tired of being the party pooper on this issue,[2] I am offering up something new.  Here it is:

Don't do it...unless you make it something new.

What do I mean by "something new"?  I mean a use that is so clever, so additive, that even though it uses a copyright-protected work, it creates a work with independent meaning.

Examples of this "something new" are:

  • Extensive[3] "color commentary" combined with the reading.
  • Replacing the characters in the books with people in your town to make a witty commentary about town life.[4]
  • Combining the reading with a special talent, such as reading each sentence of a travel book while traveling to a different yoga position, or reading a baking scene in a book while making a cake. 
  • Humorous juxtaposition, like reading the first scene of Moby Dick[5] while fishing, or reading a book about puppies to your cat.[6]

Despite all the wishful writing out there, the cloud of the pandemic did not bring us the silver lining of automatic expansion of fair use.  That said, it hasn't diminished fair use.  So, if your library:

  • Isn't using the event as a fund-raiser;
  • Is using the event to educate and engage the public;
  • Requires readers to not use the entire work; and
  • Requires a transformative use, like the examples given above...

...[7] there is a strong chance your event can go on as (virtually) planned. [8]

Good luck and happy reading!

 



[2] The answer is "Don't do it, unless you have permission or the work is in the public domain."

[3] "Extensive" means incisive comments at least every paragraph.

[4] Since I don't want to help you avoid a copyright claim only to wind up with a defamation law suit, if you do this, avoid using books that take deep and honest looks at human nature (No William Faulkner, no Maya Angelou, and certainly no Zadie Smith).  Use sunny books that make the best of things!

 

[5] This is a bad example because Moby Dick is in the public domain.  Which reminds me: you can also try using books in the public domain (published before 1924).

[6] Puppies and a cat?! 50% chance to go viral on day 1. 

[7] Which just happen to line up with the four factors of fair use.

[8] Just in case this suggestion appeals to readers, here is some suggested event recruitment text, based on the member's question:

It's time for our annual 24 hour read-aloud!  Usually, we have people camped on the front lawn but due to our work this year to keep everyone healthy, we can't hold this event in person.  Instead, we will do it virtually.

Here are the details for this year's readers: instead of reading an entire book, please work with us to film you reading from the first chapter from one of your favorite books, along with comments or a special related activity by you!  The final product will help us celebrate reading AND the personalities in our town.  Be as creative as you like, but the added content has to be related somehow to the book.

 

Tags: Copyright, COVID-19, Emergency Response, Fair Use, Library Programming and Events, Online Programming

Topic: Local organizations meeting using library's Zoom account - 5/27/2020
My Director has asked me to ask you the following question. In normal circumstances the library wo...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.

WNYLRC ATTORNEY'S RESPONSE

Life is full of surprises.  When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America.  When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.”[1]  And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.[2]

Now, let me be clear, the Zoom “Terms of Use,” most certainly bar simply enabling a “third” party to use a library’s account.  Here is the clause that does that:

You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.

In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit). 

But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings.  Both functionally and grammatically—and thus legally—this means the library is the one using the service.  It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway.  Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on. 

So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”

That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.

Physical meetings at your library all must follow some rules.  Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract. 

These documents ensure that the particular rules at that library will be followed.[3] The same should apply when the library is hosting a Zoom meeting for your community. 

In addition, since the Zoom “Terms of Use”[4] and related agreements impose certain rules, and hold the licensee (your library) responsible for any violations, the conditions for library-hosted meetings should not only require adherence to your rules, but also to Zoom’s.

Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:

  • Promoting violence.
  • Harming children.
  • Displays of nudity, violence, pornography, sexually explicit material, or criminal activity.
  • Human trafficking.
  • Supporting or facilitating terrorism or terrorist organizations
  • Any activity that is defamatory, harassing, threatening or abusive.[5]
  • Copyright infringement.

I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings.  While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom.  So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.

To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement. 

NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.

Videoconference Meeting Agreement—TEMPLATE ONLY

Person filling out this form [must be cardholder]

 

Group

 

Meeting date, time, duration

 

Target date to send out the invitation

 

Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.

 

 

Purpose of meeting (must be a purpose consistent with library operations)

 

Estimated number of attendees

 

Record meeting?

 

Live stream meeting?  Please list where the livestream will be accessible

 

Please list your group’s Meeting Facilitator

[see Meeting Facilitator Responsibilities below]

Name:

Title:

E-mail:

Phone number:

Address:

[To be filled in by library]

Library Staff serving as “host” on the videoconference.

Name:

Title:

E-mail:

Phone Number:

Facility Use Policy

[attach]

Additional terms of use

https://zoom.us/reasonableusepolicy

 

 

On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.

It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions. 

The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff. 

The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.

The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).

When it is time for the meeting to begin, the library staff hosting the meeting will state:

“Welcome to [MEETING NAME].  Hosting an online meeting with your group is a service the library provides to our community groups without charge.  Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility.  If you have concerns in that regard, please let me know by sending me a private message during the meeting.  And now I’ll turn it over to [NAME] to start the meeting.”

It is expressly understood on behalf of the group that:

  • The library is hosting the meeting;
  • An employee of the library will initiate the videocall;
  • An employee of the library will co-facilitate the technical aspects of the meeting;
  • An employee of the library will participate in the meeting as set forth above to ensure the applicable rules and the conditions of this Agreement are fulfilled;
  • Participants who do not abide by the library’s rules will be muted or removed from the meeting, in the library’s sole discretion;
  • The library can cancel or terminate the meeting, in its sole discretion, at any time.

Please alert the library to any ADA considerations for hosting this meeting.  For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.

We welcome your ideas for making our co-hosted meetings better.  Constructive feedback may be sent to [e-mail].

 

Signed: ___________________________________

                        [library representative]

 

Acknowledged: __________________________________ on DATE: ______________.

                                    [cardholder]

 

Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public.  However, at all times, it must be clear that this is the library’s meeting.  Account ID’s, passwords, and hosting capabilities should not be given away.  Co-hosting should never be converted into changing the host.  The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host.  Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license. 

And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.



[1] I have since been informed that either pronunciation is acceptable.  Fortunately, with my spare fashion sense, it is not a word I use often.

[2] As found May 23, 2020 at https://zoom.us/reasonableusepolicy.

[3] The conditions in these documents will change from library to library.  Some libraries have to enforce the rules of a landlord.  Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.

[4] As found on May 23, 2020 at https://zoom.us/terms.

[5] By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”

Tags: COVID-19, Emergency Response, Meeting Room Policy, Library Programming and Events, Local Organizations, Online Programming, Policy, Zoom

Topic: Pomp & Circumstance public domain use - 5/27/2020
The song “Pomp & Circumstance” is in the public domain. Is it permissi...
Posted: Wednesday, May 27, 2020 Permalink

MEMBER QUESTION

The song “Pomp & Circumstance” is in the public domain.

Is it permissible for students to play this music while being recorded and for the district to stream it live as well as distribute a link to the recording later?
 

WNYLRC ATTORNEY'S RESPONSE

Not only can the students play, record, and stream “Pomp & Circumstance,” but they can also create an original musical based on it, rap over it, score an original movie with it, and in short: do anything they want with it.[1]

While anyone graduating in 2020 deserves this kind of red-carpet legal treatment, not only can the students do it, but everyone else can, too.  That is the beauty of a work being in “the public domain.”[2]

Thanks, and may all your virtual ceremonies be joyous.



[1] That said, any publisher that has created and distributed its own version of “Pomp and Circumstance” with a specific arrangement, illustrations, instructions, etc. may own the copyright to that particular text, and it shouldn’t be duplicated via hard copy or scanning.  In a similar vein, any publisher that has issued a specific recording may own the rights to that specific recording, and that should not be streamed or used without permission, either.  But the composition of “Pomp and Circumstance” is in the public domain, so generating a student-created version of it is fine, and if the district is the one recording it, they (and the performers) own the copyright (see Copyright Office Circular 56)!

[2] “In the public domain” means “no longer protected by copyright.”  Edward Elgar, composer of “Pomp & Circumstance,” died in 1934, so even under the most rigorous scheme of ownership, the copyright to P&C has expired.

Tags: COVID-19, Emergency Response, Online Programming, Public Domain, Streaming

Topic: Online Library Programming (Any Type of Program) - 4/1/2020
Our library is arranging more online programming in response to COVID-19 closures and reductions.&...
Posted: Wednesday, April 1, 2020 Permalink

MEMBER QUESTION

Our library is arranging more online programming in response to COVID-19 closures and reductions.  What should we be thinking about in making these arrangements?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

 

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

 

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                                        [NAME]

 

Signed for Instructor on _________:_______________________

                                                                        [NAME]

                                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.



[1] I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.

[2] The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

 

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Live streaming a chair yoga program - 3/30/2020
Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in...
Posted: Monday, March 30, 2020 Permalink

MEMBER QUESTION

Can we sponsor an online chair yoga class open to the public? We hosted this program on Mondays in person and would like to make it available during our COVID 19 closure. The instructor can live stream herself with payment and we'd like to open it up to anyone. Do we need waivers or disclaimer language on our website?

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online chair yoga class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming but can pay those who offer library programming for free, so as the member says, this online chair yoga program should be open “to anyone.”[1]

In this instance, it sounds like perhaps the instructor has (perhaps) been paying for space in the library, while offering on-site or online classes for a fee.  In the new arrangement proposed by the member, the classes become a free library program.  This means the instructor can still be paid, but the payment should come from the library, while the on-line attendees tune in for free. 

The trick in this is to avoid any “fiscal hybridization;” in no event should the library host and promote the event, while the instructor gets some payment directly from attendees.

                                                               

2.  The online content details

Once your library has confirmed the financial details,[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

 

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

 

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,[3] have this template customized for your library by your local lawyer or insurance carrier.

CHAIR YOGA AGREEMENT

The [LIBRARY] (“Library”) and [NAME] (“Yoga Instructor”), a yoga instructor certified by [CERTIFYING BODY], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Yoga Instructor will offer classes in chair yoga (“Chair Yoga Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The Chair Yoga Classes will be a target audience of those who can benefit from online social gatherings to participate in routine chair yoga. 

To promote safe participation, at the start and end of every class, the screen will read, or the Yoga Instructor will say:

[INSERT Yoga Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

Chair Yoga is intended as a gentle but serious exercise for the mind and body.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please also know that Yoga, in general, can connect you to feelings that you may wish to address with your mental health provider.  Please stay safe during this time of social distancing and enjoy our class.]

Chair Yoga Classes will be promoted as a free program of the library and Yoga Instructor shall not charge individual attendees for these sessions.

Library will pay Yoga Instructor _____ per session. 

[OR] Yoga Instructor has agreed to provide this programming on a volunteer basis.

Yoga Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Yoga Instructor and Library shall be used during recorded or live-streamed Chair Yoga Classes.

Yoga Instructor agrees that Library may use their name, likeness, and image when promoting Chair Yoga Classes. Library agrees that Yoga Instructor may use its name, likeness, and image when promoting Chair Yoga Classes.

All sessions of Chair Yoga will be recorded by [INSERT] and the recording will be jointly owned by Yoga Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Yoga Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in Chair Yoga Classes.

Yoga Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

 

Signed for Library on _________:_______________________

                                                            [NAME]

Signed for Yoga Instructor on _________:_______________________

                                                                                [NAME]

                                                                               

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to the promotion, the session, the recordings to comply with the Agreement, and top make enhancement based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

While there is very little risk of liability for personal injury during livestreamed chair yoga (compared to say, in-person “Acroyoga”…you should see the case law on that![4]), “chair yoga” is targeted to a population with some physical limitations,[5] so attention to these details is a good idea. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

And finally, the most important detail for busy library professionals scrambling to serve their communities right now…

 

6. Remember to breathe

…it helps with stress.

Best wishes for a good program, and happy utkatasana.[6]



[1] I also would not have a concern with it being restricted to cardholders within a system, or cardholders registering in advance to participate for free.

[2] The yoga instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.

[3] If you can, this template should be reviewed by the lawyer who knows your library best.  But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.

[4] Here’s a quote from a case, (Malouf v Equinox Holdings, Inc., 38 Misc 3d 1223 [Sup Ct, NY County 2012]): “The exercise during which she was allegedly injured called for her male partner to lie on his back with his legs in the air. She "was told to lean over his feet and put his feet on my pelvis and lean forward and hang limp like a rag doll balancing on his feet with his feet on my pelvic bone”…The next step "was to put our hands together and bring our hands behind our heads with our elbows up in the air" (id.). Then, "the dark-haired girl came and forcefully pushed my elbows behind my head and forcefully brought them together and I screamed Ouch'" (id.). Malouf had not asked for assistance (id. at 31).” 

Ouch, indeed.

[5] Please don’t tell my mother, who does chair yoga at New Hartford Public Library, that I have characterized her activity this way.  There is absolutely no limit to her ability to chastise me over the 180 miles between her house in New Hartford and my house in Buffalo.

[6] “Chair pose.”  One of my favorites.

Tags: COVID-19, Emergency Response, Library Programming and Events, Streaming, Online Programming

Topic: Music Accompaniment - 1/16/2020
Can a music accompaniment part be recorded ahead of time for a performance as long as the school o...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

Can a music accompaniment part be recorded ahead of time for a performance as long as the school or library has a copy of the sheet music? Can a few modifications be added to the accompaniment as long as the heart of the work is preserved? Can this recording be shared among schools and libraries as long as each organization has a copy of the sheet music with performance rights?

WNYLRC ATTORNEY'S RESPONSE

This question came in from a school system, and it triggered a lot of memories for me.

My junior high school music teacher was a very nice man.  From deep within mid-1980's Central New York, he tried to cobble together an orchestra from an array of students whose skills and practice habits ranged from "Julliard-bound," to "who is torturing that cat in the third violin chair?"

Back in 1986 (when I was 13), I saw this guy as "old."  Because of the way he tirelessly started the music over (and over) until the brass section[1] entered at the right bar of "Star Wars", I also saw him as a font of endless tolerance.

Now that I am older, my memory portrays my former teacher as a pretty young guy (I think he was in his early 30's).  And by now I have worked with enough educators to know that his tireless tolerance of our incompetence was passion.

So, this question has stirred a feeling of nostalgic gratitude.  Because of that,[2] I want to give this member an answer that is really solid, helpful, and clear.  But as they say in the construction biz when people ask for a job that is quick, quality, and cheap: I can give you a combination of any two, but not all three.

Here is the part of the answer that is solid and clear: Making a recording of a copyright-protected composition, unless the recorder has the permission of the copyright owner, or the recording falls under an exception, is copyright infringement…even for educational purposes.

Is there helpful and solid authority on that?  Yes. Circular 21, the long-standing guidance on the relevant copyright laws,[3] makes it clear that for educators, only the following recording of musical compositions is allowed under "fair use":

A single copy of recordings of performances by students may be made for valuation or rehearsal purposes and may be retained by the educational institution or individual teacher.

[AND]

A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

So, at first blush, the answer to the member's first question (and thus, all the following questions) is: NO.

Now, the core guidance in Circular 21 is OLD.[4]  It pre-dates streaming, it pre-dates file-sharing, and depending on what start date you give the web, it pre-dates the Internet.  But insofar as case law and legal commentary is concerned, it abides.[5]

So, while I have to answer a resounding NO to the question just as it is asked, I can offer a few helpful and clear solutions.

First, it never hurts to ask.  Depending on the copyright holder, you may be able to get a "limited license" for the very thing you want to do.  Some owners might even be charmed.  Others, of course, will just refer you to their manager.  You never know until you try.  Just make sure you get it in writing.

Second, while the Circular 21 guidance quoted above gives clear examples of what fair use permits, on page 7 of Circular 21, just before listing those guidelines, it states "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use."

So, if a version has been recorded for performance as part of a clever mash-up, for purposes of commentary and criticism, or another use that might meet fair uses' four factors, this approach is worth considering.  Sadly, since that is a case-by-case analysis, I can't say what precisely when that is allowed!  An education institution should perform such an analysis using its fair use form.[6]

Third--and I can't believe I am suggesting this--it may be that a combination of different licensing can arrange this precise permission for you.

We'll call this the "Two-Step Shuffle" solution.  It is meant to be helpful, and it is solid, but I am concerned it might not be too clear.  But let's give it a go.

NOTE: to use the "Two-Step Shuffle" solution, your institution MUST have a public performance license from a licensor like ASCAP or BMI.  So, if your school doesn't have one, just stop reading, right now.  But if you do…

Step one: see if the song you want to record is licensed for "covers" on a publicly accessible "host site" like YouTube.[7]  If the host site[8] has the license, you can record the accompaniment as a "cover," and put it on the host site.

Step two:  With your "cover" recorded, you can then play it from YouTube at any premises that has a license for public performance (this is why you need that license from ASACP or BMI…which is also what covers playing music at a high school dance, music over the loudspeaker during halftime, etc.).

Of course, this being an Internet solution, the "Two-Step Shuffle" solution could disappear at any moment!  But this being the Internet, something else will take its place.

Now, in suggesting a school to make use of a commercial video hosting service (like YouTube), I would like to take a moment to discuss those two important legal concepts: "Coulda," and "Shoulda."

Just because a school can upload content to a site like YouTube, and get a license for a cover, doesn't mean it should.  After all, when using a service like YouTube, an institution agrees with these terms:

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

In other words, you're feeding the beast; you're commodifying the content you've chosen to share.  If it's student work, there are privacy and further intellectual property concerns (students own their copyrights, after all).  None of these are things an educator should take lightly.

That said, if approached with the right balance of attention to legal details and commitment to artistic excellence, the "Two-Step Shuffle" can also show future artists and performers how to respect copyright law and engage in self-promotion (which seems to be a critical skill  nowadays).  So "woulda, coulda, shoulda?"  If you undertake the "Two-Step Shuffle" solution, do it with an "ethics buddy" (preferably an administrator who has your back).

And of course, a "Two-Step Shuffle" solution can only be used if you can answer these questions in the affirmative, and you preserve the documents from which you derive your answers:

  1. Do you have express permission from the host site to make and post the recording on the host site?
    1. If "yes," keep a copy of that permission.
  2. Do you have express permission to perform the recording at the premises?[9]
    1. If "yes", keep a copy of that permission, too.

That second part pertains to any other school or place that wants to publicly use your recording, as well.

So, there you have it.  Was this solid and/or helpful and/or clear?  In keeping with my Junior High memories, I give myself a "B."

I do wish this answer was a little less like trying to get the brass to come in at the right bar of "Star Wars," but copyright, fair use, and licensing take time and attention to detail to get right.

That said, with enough passion to fuel the effort, I am confident you'll hit the right note.



[1] That was me.  I played trumpet.  And had braces. NOT a good combo.

[2] And because I have high standards.

[3] Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," which has been in use since my days playing trumpet, and arguably, could use some updating.  You can find it here: https://www.copyright.gov/circs/circ21.pdf

[4] How old? It was first contained in a joint letter written by representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the "Ad Hoc Committee on Copyright Law Revision" on April 30, 1976.  Of course, if I tell my younger sister that something from 1976 is "old," I'll catch hell, but fortunately, she teaches religious education, not music.

[5] A scenario such as the one depicted by the member doesn't even get any slack from educators' other great copyright reprieve: section 110.  While 110 does allow a variety of exceptions for musical performances, it doesn't extend its tolerance to recording.

[6] Something no not-for-profit educational institution should be without, since it can help your institution limit damages under Section 504 of the Copyright Act.

[7] As of January 13, 2020, YouTube maintains a list of licensed songs you can record and upload at https://www.youtube.com/music_policies?ar=1578920053089&nv=1.  And, also as of this January 13, 2020, YouTube (unlike Netflix or HULU) enables businesses to use their services (rather than restricting them for "personal" and "home" use).

[8] Insofar as I know, only YouTube does this.  But I need to get out more, and of course, this type of thing evolves quickly in cyberspace.

[9] This is different than permission to perform the musical composition!

Tags: Copyright, Fair Use, Music, Circular 21, Online Programming

Topic: Live Music Covers and Permissions - 7/31/2019
First question… Our library will be hosting a live music event in the local auditorium th...
Posted: Wednesday, July 31, 2019 Permalink

MEMBER QUESTION

First question…

Our library will be hosting a live music event in the local auditorium this summer. The musicians are all local (one is a library employee). The performers are all volunteering their time and there will be no admission fee to attend the event. Do we need special licensing if the musicians perform covers of published songs? Is licensing needed for a performance if it is all original music? If covers are done would making an announcement that no recordings are to be made safeguard against copyright infringement?

Second question…

When a library schedules a live musical performance what should they be concerned about in terms of public performance? Does the library need to have any coverage in place if the musical group is playing covers of song by other artists? Is it the musical groups responsibility to obtain that permission? In this instance a local television news crew would like to cover parts of an event with musical performances. The concern is that some of the artists will be playing music that they may or may not have the rights to. What should the library consider in this situation? Even if the news crew was not covering the event, is there some type of infringement the library should be concerned about? 

WNYLRC ATTORNEY'S RESPONSE

It's a musical double act at “Ask the Lawyer” today!

Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.

These two members’ questions arrived within one week of each other. 

The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions. 

The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]

To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.

Copyright

And

Performance

Factors

All songs composed by performers

Some songs composed by others (some “covers”)

All covers

Karaoke

 

Admission charged for profit

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

 

Performers are paid

 

(whether or not admission is free)

 

The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library.

 

The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.

 

 

The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider.

 

No compensation to performers

 

AND

 

Admission is free

 

This group wrote their owns songs, and they are willing to perform for free?  They must love the library!  Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).

 

 

Okay if performance of covers is not “transmitted”[2].

 

Just make sure your library also has a contract  addressing other priorities (see “contract” comments below chart).

 

 

Okay if performance of covers not “transmitted” to the public.

 

Just make sure your library also has a contract addressing other priorities (see comments below chart).

 

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.

 

No compensation to performers;

 

admission proceeds are used to benefit library

 

 

They wrote their owns songs and all the proceeds are going to the library? 

 

Super-cool performers.

 

 

Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).

 

 

Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).

 

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.

 

 

Wait!  Did we mention it’s an entire musical!?!

Your library knows a group that wrote their own musical?  That’s awesome.  Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below.

No performance without a license to the entire musical.

No performance without a license to the entire musical.

A karaoke musical?  So cool.  But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded.

 

What if the news shows up?

 

 

Excellent. More exposure for a band with talent and originality, and for your library.

 

Excellent…more exposure for the group and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.

 

Excellent…more exposure for the group, and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.

 

My worst nightmare would be the news covering me doing karaoke.  But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).

There are a few things I am sure you’ll notice in this chart:

First, I keep mentioning having a “contract.”  No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance. 

This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library.  For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.  

The contract does not have to be extensive, but it should cover the fundamentals listed above.  It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI).  A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).

Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!”  These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

This section of the Copyright Act was crafted with just the members’ type of event in mind.  As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception.  But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]

So as you see, with some careful attention to details, a show can go on.  Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

 

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

 


[1] Anyone who has seen “Spinal Tap” knows that there are an amazing variety of things that can go wrong. 

[2] To “transmit” a performance is to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”—this includes a livestream, video, or broadcast.

[3] This is partly why I gave you a chart.  That, and I love charts.

[4] As of this writing, I am 46.  When this song came out, I was 10, and the song, along with many people’s hair, was HUGE.

[5] Parody lyrics are not legal advice.  Use the chart, consult the law, and don’t have a concert without a contract!

 

Tags: Copyright, Music, Online Programming

Topic: Fair Use and Restrictions of Song Parodies - 4/16/2019
We are parodying words to a popular song to create a video celebrating our library's anniversa...
Posted: Tuesday, April 16, 2019 Permalink

MEMBER QUESTION

We are parodying words to a popular song to create a video celebrating our library's anniversary. The song is 50 years old. We will be using the music but changing the lyrics. We will be videoing staff members singing. Can we post this video to our library website? Can we use it in public settings? Are there any restrictions on use? Thank you.

WNYLRC ATTORNEY'S RESPONSE

When this question came in, I called the member library to get a bit more information: What was the song?  Would the video would be used for fund-raising?   How is it being put together?

You know…boring lawyer questions.

Since libraries are NEVER boring, I of course got interesting answers and more information than I bargained on.  With the permission of the member, and since this answer is not confidential legal advice, I am going to share a dramatic re-creation of our discussion here:

LAWYER:  Hi!  I am Stephanie Adams, the attorney for the council’s “Ask the Lawyer” service.  I wanted to check in on a few things for your question here.

LIBRARIAN:  Oh! Thank you for calling. 

LAWYER:  My pleasure.  Now, I just have a few questions….what song are you thinking about using?

LIBRARIAN:  Well, our library is turning 50, and we want to celebrate it.  We thought we’d pick a song that was from the same year we started.  As it turned out, this was a bit difficult, because it’s a challenge to find a song from 1969 that isn’t depressing.

LAWYER:  An upbeat song from 1969?  Wow, now that I think about it, that probably is a tall order.

LIBRARIAN:  Yes!  But we found one.  “Sugar, Sugar” by the Archies came out in 1969.

LAWYER:  Aha!  “Da da DAda DA da…”  Yes, that is catchy.  What are you thinking about doing with it?

LIBRARIAN: Well, we want to do a version that [REDACTED TO PROTECT SURPISE].  So, just like I wrote, we want to know if we can use the original recording for the music, or maybe just play our own version…one of our librarians is in a band.  And we’d like to put it on Youtube, or perhaps our website.  Or maybe just play it on computers in the library?

LAWYER:  Hmmm.  Do you plan on using it in connection with any fund-raising?

MEMBER:  No, no.  Just for fun and celebration.

LAWYER:  Okay.  Well, that’s helpful.  But I can see why you sent in this question.

LIBRARIAN:  Yes.  I know there could be some copyright issues.  But everywhere I look, I see libraries doing their own parody video versions of songs.  The ALA even did a parody of a Taylor Swift song!  So I figure, there has to be a way.

LAWYER:  Many ways, in fact.  And of course, just like you say, many, many, ways to have some concerns.  Okay, I need to hit the books.  I’ll be back in touch soon!

[PLEASANTRIES]

[END CALL]

 

The first thing I did, after this call, was check out Youtube.  The member was right: the internet is alive with clever, original, library-produced parody videos!  How had I missed these?  I really need to crawl out of my law cave every now and again.

That said, after a few fun moments of sharing some library/parody videos with my office people, I crawled back into my law cave to address the question.

In general, what does a library making a parody video have to consider?

Although many people think doing a “parody” is an instant ticket to a Fair Use (section 107 of the Copyright Act) defense, the member’s caution was right-on: the use of a musical recording (which is also use of a musical composition and its written lyrics), must jump multiple hurdles before it meets 107’s criteria.

As Justice Souter put it in the famous “2Live Crew” case[1]:

Parody, like other comment and criticism, may claim fair use. Under the first of the four §107 factors, "the purpose and character of the use, including whether such use is of a commercial nature . . . ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. [emphasis added]

In other words, parody doesn’t mean an automatic ticket to a Fair Use defense; the new work has to create a new message while also partly commenting on the old.  This is a high bar, even when the other factors (like a non-commercial use) may be in a library’s favor.

2 Live Crew’s version of Roy Orbison’s “Pretty Woman,”  which used both the music and AND (some of the) lyrics of the original, hit that bar: “It is th[e] joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works,” wrote Souter in 1994. 

Only this “joinder of reference and ridicule” protected 2Live Crew as they made use of Orbison’s musical composition and lyrics.  Had they left that “reference and ridicule” out, had they simply recorded a cover version of the song and changed a few lyrics without engaging in true commentary about the original, that wouldn’t have had that protection, and their use would have been infringing.

So, when planning a parody video, a library has to be honest: is it a true parody allowing Fair Use, or is it a fun riff that should get a license? 

Using our “Sugar, Sugar” scenario, let’s explore the difference:

The original video for “Sugar, Sugar” shows Archie, Veronica, Sabrina and the gang at a fair in Riverdale.[2]  Archie’s band strums and sings “Sugar…Aw, Honey Honey,”  while Sabrina runs a kissing booth. The whole things is a montage of Sabrina transforming the attendees into various animals with her magical kiss (cost: $1.00).  It is charming (although of course rampantly sexist).

Now, for a comparison of a fun riff versus a true, Fair Use-defensible parody.

A fun riff on this cartoon music video would simply change some of the lyrics and create a new, non-referential video.  Perhaps the chorus, instead of “Sugar, Sugar,” would be “WorldCat.  Aww…WorldCat, WorldCat,” and the video would be a montage of people at computers singing about how exciting databases are.  It would be funny and make a point, but there would be no commentary on or ridicule of the original.

A fair use-defensible parody would go deeper, perhaps saying something like: “Budget.  Ow…Money, Money,” and the video would be a montage of librarians doing what it takes to raise money for supplies and transformative programming.  It would riff off the original to criticize budget cuts, but just as important (for our Fair Use analysis), it would be a comment on the exploitive but subversively transformative commercial nature of the kissing booth in the original.

Have I lost you yet?  I’m sorry.  Fair use is something not even federal judges get right, and the nuances of the case law make it a very unreliable defense for all but the most incisive parody-driven comment and criticism. 

The bottom line: When a library or other institution wants to do a fun riff on a song, the safest bet is to get a license.

So if your library decides your video will be a fun riff and not a fair use-packing parody, what are the options? 

The librarian mentioned another source in our discussion: YouTube.

YouTube has spent the last few years working with ASCAP, BMI and various other rights holders to license songs for their use on the video service.  Ads that run while YouTube videos feature these songs generate revenue that goes, in part, to the rights holders.  This enables “YouTubers” (i.e. content providers) to use the songs (although there are certain requirements for every license), and gives the rights holders a steady revenue stream.

I visited YouTube’s website and looked up “Sugar Sugar.”  Sure enough, “Sugar, Sugar” is licensed to YouTube for both direct play (i.e. to use as the music accompanying a video) or for a cover (for a YouTuber to generate and publish their own version of the musical composition).

Of course, any departure from the original recording or lyrics is not quite a “cover;” arguably, it is a derivative work, which is a separate right under the Copyright Act.  But when the YouTube license allows for either the song to be played, or a “cover” to be generated, YouTubers have a lot of options.  So whether the original version is used with fadeouts to the library’s custom recording, or the member library simply puts their voices over a copyright-protected musical recording, the YouTube license should cover it.

If YouTube is not your cup of tea, the other solution is to go to the rights holders (in the case of “Sugar, Sugar,” reportedly over 12 parties!), and ask for permission.  BMI has a license they offer to not-for-profits, which allows up to three songs per year at a rate of $00.08/1,0000 page hits.  This type of exercise could be tedious, but depending on what you want to do, could be the best option.

In Closing: A Comment About Fair Use

That said, I am mindful that an unacceptable by-product of all this “easy licensing” could be the erosion of Fair Use.  As just an example, one of my favorite parodies is a simple lip-synch and video re-creation of the Hall & Oates song, “Private Eyes”  (if you haven’t seen this, give yourself 5 minutes when you need a boost). 

Because of the keen mockery and recontextualization of the original video’s choreography and messaging, I would argue that, if sued, the parody’s creators would have a Fair Use defense.  But they don’t need one to make such a defense, because they operate with the YouTube license.   And their parody makes money for the song’s rights-holders every time the video is viewed[3].  That seems to be working out for everyone, but use of a work for legitimate commentary and criticism should not depend on the permission of the rights holder.

This is why all people who believe in the open flow of ideas and information must remain staunch defenders and users of Fair Use.  It is a critical asset that should be vigorously promoted whenever possible.

Thank you for a great question, and happy library-versary!



[1] CAMPBELL, aka SKYYWALKER, et al. v. ACUFF ROSE MUSIC, INC. (U.S. Supreme Court) No. 92-1292. Argued November 9, 1993 -- Decided March 7, 1994

[2] This was an enlightening moment.  I didn’t know that “Sugar, Sugar” was first played by comic book band “The Archie’s” on their TV show in 1969!  Or that “Sabrina the Teenage Witch” (a staple of my ‘90’s young adulthood) made her debut in the Archie comics in the ‘60’s.  Really, until I got this question, I was horribly ignorant of a critical area of Americana.  I blame my parents, who only let me watch PBS and Canadian television during my childhood.

[3] Fair Use is alive on YouTube!  It just has to clearly meet the formula.  Check this commentary and criticism by “Ted in the Shadows” out; none of the samples in this cite a YouTube license: https://www.youtube.com/watch?v=OR53NMVQ19s

Tags: Copyright, Fair Use, Online Programming, Parodies

Topic: Online Story Time and Copyright - 3/11/2019
[The member provided a link to a story about an elementary school principal putting on her pajamas...
Posted: Monday, March 11, 2019 Permalink

MEMBER QUESTION

[The member provided a link to a story about an elementary school principal putting on her pajamas and using “Facebook Live” to read her scholars a weekly bedtime story.]

I always love ideas like this but am afraid to promote them because I have heard that this is a copyright violation. Is it? If it is, what are our options to do something like it in a legal and ethical way? Thank you!

WNYLRC ATTORNEY'S RESPONSE

Reading to kids is one of the best thing we can do for them.  If the law gets in the way of that, there is something wrong with the law!

That said, honoring the rights of authors and illustrators who create stories to charm and educate is one of the best ways we can make sure there is always something new to read. 

And it’s the law.  

The member’s concern is justified; copyright law rewards creativity by empowering rights holders to control how and when their work is duplicated--in this case, “performed”[1].  A reading on “Facebook Live”—no matter how many cute, be-jammied scholars it enriches—could infringe those rights[2]

But as the member also suggests, respecting copyright does not need to be the end of the line; there are many ways this type of real-time, remote reading can take place.

Below, please find my “Top 5 Ways for a Teacher to Remotely Read a Bedtime Story to Lots of Kids in Different Places Without Fear of Committing Copyright Infringement.”

1.  When choosing a book to read, select a work in the “public domain”…meaning, the book is no longer protected by copyright.  As of 2019, this means works published before 1924 (in the U.S.) and other select situations.[3]

For example, the “Brothers Grimm” who were writing in the 1800’s, are not suing anymore (nor are their heirs).  Just make sure the publisher hasn’t found a new way to assert the copyright of the copy you read from (a new version, new illustrations and layout, a slightly less sadistic version of the original, etc).

2.  Write your own story.

This one is my favorite.  Who knows?  You might discover you’re the next Eric Carle!

3.  Hold a writing contest amongst the students that includes parental permission to read the entries/winners online. 

This could also bolster interest in the event, since kids could hear their own work read, and see their own pictures online.

4.  Explore making the reading exempt under the TEACH Act (section 110 (2) of the Copyright Act).

The TEACH Act exempts certain digital transmissions of work from the classroom environment.  It has several highly specific requirements, so educators should connect with their institution’s attorney and IT department to see if this option can work for them.  While not the solution for every “good night” reading, with some planning, it could be a way to make online reading sessions a part of a routine curriculum.

And finally…

5.  Explore getting permission from the rights holder!  While not all authors will be in a position to agree, many will say “Yes, of course!” when asked if a teacher can livestream a reading of their book (of course, if you also want to show their book as well as read it, you will need permission from the illustrator, too). 

Reaching out to an author or publisher takes time, but many children’s authors are very accessible.  My high school friend, Grace Lin, is a well-known children’s book author (and recent winner of a Caldecott Honor for “A Big Mooncake for Little Star”).  I reached out to Grace on Facebook to get her take on this issue (and got her permission to share her thoughts). 

For Grace, whose work contains lovely and carefully rendered illustrations, such a request would be about intent and quality.  She said if the reading was more about the not-for-profit reader and audience connecting over her story, and not the video dwelling on the pages (effectively copying them), she would consider giving permission.  On the flip side, Grace felt that serious duplication (with the video dwelling on the pages) could be an unwelcome duplication. 

Like many children’s book authors, Grace is accessible via her website, www.gracelin.com, and I encourage would be night-time-story-readers to reach out to her!

Thank you for this great question.  Copyright is an important law to honor in the educational environment.  But finding ways—lots of ways—to give children an early and deep love of books is an even greater service to the world.  It’s one of the reasons librarians are so important.

 


[1] There are six distinct rights given by a copyright: reproduction, , derivative works, distribution, performance, display, and (for sound recordings) digital transmission.  You can see the full list here:  https://codes.findlaw.com/us/title-17-copyrights/17-usc-sect-106.html

[2] Small note: the reason books can be read aloud in class (from k—grad school) without fear of infringement is because of an exception in Section 110 (1) of the Copyright Act.  My solution in number “5,” above, is based on this exception.

[3] How can you tell if a work is in the public domain?  One of the great treasures of the universe, a chart for determining public domain availability, is maintained by Cornell University at:  https://copyright.cornell.edu/publicdomain.

Tags: Copyright, Social Media, Streaming, Story time, Online Programming

Topic: Copyright Liability For Programs Using Audio/Video Recordings - 10/31/18
Does our library incur any liability when a program presenter uses our facility and presents a pro...
Posted: Wednesday, October 31, 2018 Permalink

MEMBER QUESTION

Does our library incur any liability when a program presenter uses our facility and presents a program at our behest that includes music, either a previously-issued recording of music not original to the presenter, or a live performance of a piece of music composed by a person who is not the presenter? What about a presenter who just contracts to use the venue, without library sponsorship of the program? What about the capture of such a performance and our streaming it or recording it for later posting on our website or broadcasting it on our community television as a public service? If so, what is the best way to protect ourselves?

WNYLRC ATTORNEY'S RESPONSE

This is a huge question! 

I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.

But I will limit this reply to 5 answers I think are most helpful to the average library:

Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter.  In a copyright case, everyone who contributed to the infringement is generally named as a defendant.  So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.

Answer #2: Yes, there are several things a library can do to protect itself!  When it comes to a performance by a third party, the best option is a properly worded contract. 

For any use of its facilities, the library should have a stock contract that provides for the following:

1) verification that the performer has all the licenses and permissions it needs to perform;

2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,

3) proof that the user has the right insurance to back up to their indemnification. 

The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant?  Owner? What type of insurance do you have?). 

A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.

Answer #3:  That said, there are several types of performance that are exempt from copyright infringement claims.  For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance iswithout any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” and there is no “direct or indirect admission charge.” 

In other words: no transmission + no money + no commercial advantage = no problem. 

Of course, “commercial advantage” can be a tricky phrase.  If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed.  When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser?[1]  Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.[2]

Further,  is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).

That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).  

And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party.  The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!

Answer #4:  If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners.  They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.

Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries[3].  But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.[4]

Answer #5:  The member’s final question addresses recording a performance at the library, and posting it online. 

As the question suggests, this is where you have to be very careful.  A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way.  Under 17 U.S.C 1101, it could even result in a claim by the performer!  So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.

So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance?  No.  While there may be sociological reasons to do that[5], if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.”  Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.

And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go[6]” at the local library?  Unless it goes viral, it’s not too likely.  But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.

Thanks for the questions!

 


[1] Maybe they are one of those rock stars that hate libraries.  I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.

[2] I am of course kidding about Metallica.  Please don’t sue me, Lars!

[3] I checked the PACER database of federal law suits and could not find any cases brought by them against a library. 

[4] For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”

[5] I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.

[6] Since I have a 4-year-old, I have this song memorized.

 

Tags: Copyright, Music, Online Programming, Social Media

Topic: Using books on social media - 9/19/2017
Can we film a story time done at the library using copyrighted books, and then either stream the e...
Posted: Tuesday, September 19, 2017 Permalink

MEMBER QUESTION

Can we film a story time done at the library using copyrighted books, and then either stream the event live over Facebook for a one-time showing, or film and upload the story time to our library's YouTube channel? The purpose would be so that patrons who cannot come to the library will still be able to participate in story time and gain early literacy benefits.

WNYLRC ATTORNEY'S RESPONSE

This is a lovely idea, but any library considering something like this should get assurance that the work is in the public domain[1], or have permission from the authorized licensor (who is not always the copyright holder), before filming/streaming. 

This is because an audio recording[2] of a copyright-protected book is likely a “derivative work” (a work based on the original[3]) that, without permission, constitutes an infringement. 

A great example of a permitted derivative work is a commercially published audiobook.  Check out the credits on an audiobook listing—they generally recite two copyrights: the first for the original work (used with permission), and the second for the audio recording.  This is how the law both limits and promotes such recording.

A few other legal considerations approach this scenario, but don’t quite apply:

  • “Fair Use” would not apply, as the reading would likely use a large portion (if not the entirety) of the work, and the purpose is not transformative, nor for commentary/criticism. The fact that the transmission would be for a worthy goal, consistent with a library’s mission, is likely not enough to make the use Fair--even if the effect on the market would be insubstantial.
  • If the recordings were purely for ADA accessibility[4], there could be an argument, but such a project would need to be planned carefully, but that is not the purpose in the example.
  • The TEACH Act, which allow academics at TEACH-registered institutions to stream copyrighted content, but that only applies under very precise circumstances.[5]

That said, because a live reading could promote the works featured, I imagine there are publishers who would grant a limited license for such an endeavor.  However, depending on their contract with the author(s), a publisher might not be able to!  In any event, asking permission is a case-by-case exercise.

The good news is that the reading itself, at the physical location of the library, is allowed so long as it meets Section 110 (4)[6] of the Copyright Act (this probably isn’t news to most librarians). 

Very often, attorneys are perceived as throwing cold water on project like this, and hopefully this answer has shown why that is usually our only option.  That said, if there is ever a specific work a library wants to plan an event around (a specific book, etc), it is worth it to investigate the status and licensing posture of that work.  You never know what you’ll find when you check the status, or the ability to get permission, for a specific work.

I wish you all good reading.

 


[1] No longer protected by copyright…and for that matter, not affixed with a trademark the owner could claim you infringed.

[2] Because it technically “makes a copy” as it goes, streaming is often considered duplication.  If you ever feel like causing a healthy debate, ask three intellectual property attorneys and a U.S. Supreme Court Justice to comment on this line of case law.

[3] Per Section 101 of the Copyright Act: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. [Emphasis added.]

[4] Per Section 110 (8) of the Copyright Act.

[5]Those circumstances are listed in the ALA’s TEACH Act FAQ.

[6] Law linked here.

Tags: Copyright, Public Domain, Streaming, Derivative Works, Social Media, Story time, Online Programming

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The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.